From the TEDxNYED event this past Saturday in New York, one of my favorite big thinkers, Lawrence Lessig with an excellent presentation on openness and the remixing of culture.
Although the theme of this great set of talks was supposed to be education, even in the broadest sense Lessig never really makes the connection.
So, it’s up to you. Every educator needs to understand how our intellectual property laws are making unwitting criminals out of our most creative students.
There’s a good reason why most educators don’t understand US copyright law, especially the Fair Use provisions.
Current fair use law is hazy by design; instead of laying out specific use cases, the law relies on the famous “four factors” about the purpose of the use, the nature of the copyrighted work, the amount borrowed, and the effect on the value of the original work. This can be maddening in many situations, because it is impossible to know in advance if a particular use qualifies.
Clarifying and strengthening fair use is one of the five major goals of Public Knowledge’s proposed Copyright Reform Act.
The current law provides for seven purposes in which fair use applies: “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”
Among other changes, PK suggests adding three other areas: “incidental uses, non-consumptive uses, and personal, non-commercial uses.”
Incidental uses “involve capturing copyrighted works, where the copyrighted work is not the primary focus of the use–for example, capturing music playing over radio when filming a family moment.” Incidental use is hugely important to documentary filmmakers, for instance, who routinely capture copyrighted photographs hanging on walls or copyrighted shows playing on televisions in the backgrounds of their shots.
The second category, non-consumptive uses, “do not directly trade on the underlying creative and expressive purpose of the work being used.” In other words, a non-consumptive use might take the complete text of the novel, make a copy of it, but use it only as the input for a lexicographical analysis of style, not to produce a free e-book.
But it is the third proposal that might prove most controversial. “Personal and noncommercial uses” are said to “have little chance of harming copyright holders. At the same time, they are ubiquitous: every day we timeshift television shows via TiVo, create mix CDs for the car and iPod playlists to the gym, backup up our computer hard drives, and read books to her children before bed.”
Considering all the confusion over what the law allows us to do with media under fair use, not to mention the increasing number of law suits largely designed to intimidate average people from exercising their rights, these extensions and clarifications only make sense.
Unfortunately, big media companies will probably fight it with every dime they can find.
Another interesting conflict in the world of copyright and digital media.
The National Portrait Gallery [Great Britain] is threatening legal action after 3,300 images from its website were uploaded to online encyclopaedia Wikipedia.
A contributor to the popular site, Derrick Coetzee, breached English copyright laws by posting images from the gallery’s collection, the NPG said.
But photographs of works of art are not protected by copyright in the US, where Mr Coetzee and Wikipedia are based.
Of course these issues go beyond a simple my-rights, your-rights squabble.
The situation illustrates once again that the web freely crosses national borders (at least most of them) while intellectual property laws don’t.
So, should a publicly-funded museum in the UK have the right to prevent a US-based non-profit web site (fast becoming an international public utility) from using images of works that are already posted on the museum’s web site and carry no copyright restrictions outside of the country?
I doubt a definitive answer will be crafted anytime soon.
Following up on my recent rant about the DMCA hearings held this past week by the Library of Congress’ Copyright Office, Public Knowledge has more information about the testimony.
From what PK’s reporter is observing, it’s pretty clear that all sorts of special groups have their representatives at the table, but no one seems to be speaking for the rest of us.
I attended the last two days of the D.C. hearings and came away not only with a renewed understanding of how the DMCA is killing consumer rights especially fair use but also how much content owners are afraid of fair use. The hearing also reaffirmed something we have said always: the DMCA is used more to lock out competition than to protect copyrighted works.
What is more, the copyright owners fear that allowing documentarians and vidders to make clips would lead to a slippery slope. One day, every one would be able to circumvent TPMs and make clips for fair uses and that was not Congresses intent in enacting the DMCA!
This line, repeated often throughout the proceedings brought home the point that major copyright holders are out to stop not only “piracy” but any uncontrolled use, including fair use.
If the big content companies had their way (they have plenty of money and lawyers to make it happen), they would distribute everything on a pay-per-view basis.
Since they can’t do that right now, they’ll have to settle for pay-per-reuse.
In other words, if you own a DVD and want to watch it on your iPod, that will be an additional charge.
If you want to make a backup of that DVD for the kids to watch in the car, the MPAA’s solution is for you buy another copy.
And if you’re a teacher who wants to exercise your fair use rights by extracting a 90 second excerpt from a 90 minute documentary for your students to watch as part of the lesson, tough luck.
However, the DMCA is just one part of the totally screwed up intellectual property system in this country.
And the producers of DVD content are only one of the groups working to drastically restrict the rights of copyright users, which was as much the point of the original concept as protecting copyright owners.
For an excellent overview of the issues involved, read Cory Doctorow’s Why I Copyfight.
Although most educators don’t understand the details, they are generally aware of copyright law and the fair use provisions, generally accepted by the courts, allowing them leeway in using copyrighted materials in their teaching.
However, far fewer of them know about the Digital Millenium Copyright Act (DMCA), a law that makes it difficult to exercise those fair use rights, especially when it comes to DVDs.
Never fear… the MPAA has a solution: just play the program and record the video from the television set using a camcorder.
They’ve even made a helpful video to show you how to do it. (Warning: It’s painfully funny to watch.)
This demonstration was part of the hearing now going on at the Library of Congress to determine if further exemptions to the DMCA should be permitted for all educators beyond the one granted in 2006 for college professors who teach film and media.
Keep in mind, this incredibly cumbersome, not to mention stupid, idea is brought to you by representatives of the big media companies who want to control where, when and how you view the product you thought you had already bought from them.
The DMCA shouldn’t exist at all but hopefully the panel will at least grant this provision.
For more on how the DMCA is screwing up more than fair use, read the EFF’s Unintended Consequences: Ten Years under the DMCA